A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

Write On! U.S. Feminist Judgments Project

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes a call to present within Feminist Judgements: Rewritten Family Law Opinions, as follows:

The U.S. Feminist Judgement Project, seeks contributions for rewritten judicial opinions and commentaries for an edited collection tentatively titled Feminist Judgments: Rewritten Family Law Opinions. The list of selected cases, a description of the process of selecting decisions, and the opinions considered but not included, are on the application website (https://goo.gl/forms/9JYv7GtR2gJMDVbY2).

Continue reading

Read On! New Book on Public Law of Gender

I am delighted to contribute my first post to this excellent website to let readers know of the final book in a six volume series, Connecting International Law with Public Law, which I initiated as part of my former position as Director of the Centre for International and Public law at the ANU (2006-2015).  The first five volumes looks at themes including Sanctions, Access to Medicines, Environmental Discourses, Allegiance and Identity, and Security Institutions and have been published through Cambridge University Press.

The final volume has just been launched and it is of particular interest to the IntLawGrrls community.

I have co-edited this final volume with my friend and former ANU colleague Dr. Katharine Young, who is now at Boston University, and it is called The Public Law of Gender: From the Local to the Global. The volume brings together leading lawyers, political scientists, historians and philosophers.

The book examines the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, and documents the raft of legal reform and critically analyses its effectiveness. In demarcating the academic study of the public law of gender, the book examines law’s structuring of politics, governing and gender in a new global frame.

Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.  The book outlines the common and distinct challenges and issues across various fields and it provides those working with gender-sensitive laws and gender-neutral laws with an assessment of the various ways in which public law interacts with gender, by intent or outcome. It also uncovers the local and global perspectives and the obstacles facing gender equality, equity and parity, showing how traditional agendas of feminist theory now translate in a global legal frame.

I would encourage any one interested in reviewing the volume (or any of the set of six, or indeed the whole set!) for a journal to contact Elizabeth Spicer at Cambridge University Press- espicer [at] cambridge.org.

Professor Kim Rubenstein, ANU College of Law, Public Policy Fellow, Australian National University

International Perspectives and Empirical Findings on Child Participation: from Social Exclusion to Child-Inclusive Policies (Oxford 2015)

Cover for<br /><br />
International Perspectives and Empirical Findings on Child Participation<br /><br />
Edited by Tali Gal & Benedetta Faedi Duramy

The 1989 UN Convention on the Rights of the Child has inspired advocates and policy makers across the globe, injecting children’s rights terminology into various public and private arenas. Children’s right to participate in decision-making processes affecting their lives is the acme of the Convention and its central contribution to the children’s rights discourse. At the same time the participation right presents enormous challenges in its implementation. Laws, regulations and mechanisms addressing children’s right to participate in decision-making processes affecting their lives have been established in many jurisdictions across the globe. Yet these worldwide developments have only rarely been accompanied with empirical investigations. The effectiveness of various policies in achieving meaningful participation for children of different ages, cultures and circumstances have remained largely unproven empirically. Therefore, with the growing awareness of the importance of evidence-based policies, it becomes clear that without empirical investigations on the implementation of children’s right to participation it is difficult to promote their effective inclusion in decision making.

This book provides a much-needed, first broad portrayal of how child participation is implemented in practice today. Bringing together 19 chapters written by prominent authors from the United States, Canada, the United Kingdom, Ireland, New Zealand, Australia, and Israel, the book includes descriptions of programs that engage children and youth in decision-making processes, as well as insightful findings regarding what children, their families, and professionals think about these programs. Beyond their contribution to the empirical evidence on ways children engage in decision-making processes, the volume’s chapters contribute to the theoretical development of the meaning of “participation,” “citizenship,” “inclusiveness,” and “relational rights” in regards to children and youth. There is no matching to the book’s scope both in terms of its breadth of subjects and the diversity of jurisdictions it covers. The book’s chapters include experiences of child participation in special education, child protection, juvenile justice, restorative justice, family disputes, research, and policy making.

The book is available on Oxford University Press and Amazon.

Write On! Call for papers: ‘The Rule of Law in addressing Violence against Children: Success or Failure?’ (deadline 15 March)

a38contrario

A38 Online Law Journal and A CONTRARIO will be hosting a joint online legal symposium in April 2015 titled “The Rule of Law in addressing Violence against Children: Success or Failure?

Violence against children has become an unfortunate trend worldwide. Despite the growth of international instruments, national laws, and political pledges to protect children from harm, violence towards children continues to increase. Recent examples include attacks by the Boko Haram against children, gun violence in schools, institutional child sex abuse, and the continued use of child soldiers in conflicts. Given the severity of these kinds of situations, has the rule of law succeeded or failed in protecting children against violence? Is there a necessity for more legal regimes to protect children from violence or are the current laws enough? Are there examples of successful legal regimes in protecting children from violence?

Inspired by the recent people’s movement in the United Kingdom to end the impunity of perpetrators of child sex abuse, this online symposium seeks law articles which address these questions through the lens of either national or international law. The symposium also seeks to increase relevant and practical legal discourse on this important issue with a global audience.

Submission Details:

Authors are to submit a short bio and their articles by March 15, 2015.

Articles which are 1,500 words (including footnotes) or less should be submitted to A CONTRARIO ICL at acontrarioicl@gmail.com with subject line “Symposium.” (http://acontrarioicl.com)

Articles which are 3,000 -10,000 words (including footnotes) should be submitted to A38 Online Law Journal at submissions@athirtyeight.com with subject line “Symposium.” (www.athirtyeight.com)

Founder of the Abuelas Identifies Her Grandson

At long last, Estela Carlotto has identified and been acquainted with her grandson.

The founder of the Grandmothers of the Plaza de Mayo, a group dedicated to locating the some 500 children who were either born in captivity or disappeared along with their parents during Argentina’s Dirty War (1976-1983), has been searching for her grandson for thirty-six years, all while watching – and celebrating – as over 100 other grandmothers were reunited with their grandchildren. Last week, the results of a voluntary DNA test confirmed that Ignacio Hurban was born to Carolotto’s daughter, Laura, while she was in captivity in the La Cacha clandestine detention center in the province of Buenos Aires.

Carlotto with her grandson Ignacio (photo credit)

Carlotto with her grandson Ignacio
(photo credit)

As yours truly has written before, children either born in captivity or disappeared along with their parents were often placed with childless families that supported the dictatorship. In addition to the Abuelas‘ efforts to identify these (now adult) children, prosecutors across the country are charging people suspected of stealing babies during the dictatorship. Each discovery of one of these children raises several issues and questions:

►Were the families that raised them complicit in the circumstances of their arrival, or were they innocent third parties? What level of knowledge would be enough for a prosecutor to bring charges?

►Does the grandchild want to be identified? In Carlotto’s case, Ignacio chose to provide his DNA after wondering if he might be one of the grandchildren the Abuelas were working to find, but others in the same situation prefer to retain their privacy.

►What is the scope of the right to an identity; relatedly, what is the scope of the right to the truth?

Thirty years after the dictatorship ended, these and other questions remain. Carlotto will continue fighting on behalf of the Abuelas, saying that “there is still a lot to do.”

On the Job! Child Rights International Network (CRIN) seeks Legal Research Assistant

From CRIN comes this posting:

CRIN is looking for a Legal Research Assistant to support our ‘access to justice for children’ project.

CRIN is conducting a global research project examining the ways that violations of children’s rights can be challenged at the national level and how national legal systems are set up to help or prevent children from accessing justice. More information on the project is available at: http://www.crin.org/en/home/law/access

We are looking for someone to assist primarily with reviewing and editing the country reports and undertaking further legal research. The Legal Research Assistant will also contribute to analysing the findings and preparing a global report and ranking, and assist with other legal research tasks and analysis as required.

CRIN is a small international children’s rights advocacy network based in central London. Aside from sharing our values, we are looking for someone who takes initiative, is flexible, creative, and wants to work in a multicultural environment.

We will provide you with the opportunity to work as part of a small team of dedicated and passionate people and the chance to shape and contribute to a growing and exciting new area of children’s rights advocacy.

For more information on how to apply, see https://www.crin.org/en/home/about/work-us/legal-research-assistant.